Metropolitan News-Enterprise


Monday, September 23, 2013


Page 1


Anti-Bias Statute Does Not Apply to City’s Siting of Waste Facilities in Mostly Latino Sun Valley—C.A.


By a MetNews Staff Writer


The Court of Appeal for this district Friday rejected an attempt by residents of Sun Valley to block a waste treatment facility from opening in the area on the ground that the City of Los Angeles chose the site because the community is populated by Latinos.  

Div. Eight agreed with a Los Angeles Superior Court judge that a state anti-discrimination law cited by the plaintiffs does not apply because the city Planning Department—which made the decision to allow Waste Management Recycling and Disposal Services of California to build a new 104,000-square-foot solid waste transfer station, an expanded materials recycling facility, and an expanded green waste processing center at the closed Bradley Landfill site—is not state-funded.

The appeals court did, however, reinstate a separate claim that the city violated the California Environmental Quality Act. The panel said the trial judge committed an abuse of discretion by dismissing the claim on the sole ground that counsel was a week late in requesting a hearing.

Communidad en Accion based its “eco-racism” claim on Government Code Sec. 11135. The law prohibits discrimination in any “program or activity . . . funded directly by the state, or [that] receives any financial assistance from the state.”

The plaintiff argued that the required nexus between the siting decision and state funding was met because the “local enforcement agency,” or LEA, responsible for enforcing state, federal, and local law with respect to the collection, handling, storage and disposal of waste and issuing permits for solid waste facilities—now part of the Department of Building and Safety—is state-funded.

But Justice Madeleine Flier, writing for the Court of Appeal and joined by Presiding Justice Tricia Bigelow, rejected the argument, saying the LEA had nothing to do with the siting decision.

Nor, she said, are the waste-related functions of the LEA and the Planning Department so interconnected that the LEA’s receipt of state funds renders the Planning Department subject to Sec. 11135.

Flier noted that under state law, LEAs are legally independent of the cities they serve and their decisions are reviewable not by those cities, but by the California Department of Resources Recycling and Recovery, commonly known as CalRecycle.

The justice elaborated:

“The LEA provided no input in the siting of the waste facilities.  Although the LEA provided input on the construction of the green waste processing center, its recommendation was ignored.  Additionally, the LEA must issue a separate permit from the one challenged in the complaint in order for the challenged facilities to be built….The CalRecycle grant funds received by the LEA were designated to be used only for carrying out ‘solid waste facilities permit and inspection program.’….In short, the city’s designation of 25 agencies and departments as part of an integrated waste management policy plan does not show that the agencies are part of a combined ‘program or activity’ as used in section 11135.”

Flier went on, however, to agree with the plaintiff that its motion for relief from default under Code of Civil Procedure Sec. 473 should have been granted as to the CEQA cause of action.

CEQA, she explained, requires that the plaintiff request a hearing within 90 days of the filing of a writ petition challenging a local entity’s approval of a project subject to environmental review. But the statute is not jurisdictional, the justice noted, and is subject to an exception in the case of surprise, mistake, inadvertence or excusable neglect.

In this case, the attorney explained by declaration that he forgot to note the deadline on his calendar, and that he was out of town due to a family illness during the two weeks leading up to the deadline. Given decades of precedent treating those as adequate grounds for relief, the fact that this was an isolated incident involving an attorney who had otherwise vigorously litigated the case, the brevity of the delay, and the lack of prejudice, the motion should have been granted, the justice concluded.

Justice Laurence Rubin dissented in part. He argued that both claims should be reinstated.

“At a time when federal, state and local governments are calling for increased vigilance to stop imposing disproportional environmental burdens on lower income communities, the majority discards a potential tool for the enhancement of environmental justice,” he argued.  “In so doing, the majority rejects the legislative mandate to interpret section 11135 broadly.”

Because of the LEA’s role, he insisted, the entire waste management process, including the siting of facilities, is subject to the anti-discrimination law.

The case is Comunidad en Accion v. Los Angeles City Council (Waste Management Recycling and Disposal Services of California), B240554.


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